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@confused1 said:
My questions are:
What capacity does the EC (50% of those originally elected) have to enter into such financial agreements?
The Act says “When a vacancy occurs in the office of a member of an executive committee … the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office. However, in the meantime as long there is a quorum based on the intended size of the EC, decisions are valid. But that would mean that all three of those elected would have to be there in person (becasue the EC has to vote to accept proxies and they can’t vote if fewer than half of them are there, because a quorum is 50 percent of the number of members determined at the last AGM.)
If an item was approved years ago and blows out in cost, what are the limits the EC can approve without approval from the OC?
In a large scheme (over 100 lots) it may not be any more than 10 percent over budget unless that has been removed by a general meeting. I don’t think theres the same restriction on smaller schemes.
If a committee loses 50% of its members, do the remaining 50% still hold the same level of authorisation?
See the first answer – they do if they are all actually at the meeting to make the quorum – but they should appoint eligible replacements as soon as possible.
Is it possible for the OC to put a hold on the decision making rights of the EC until a new one can be elected? Keep in mind, the AGM is scheduled 2 weeks after the ECM (convenient huh?)
The Owners Corporation’s decisions are superior to the EC’s. But you’d be hard pressed to get another general meeting in before the next EC meeting. However, they’d be pushed to get anything done before the AGM pulls them into line, wouldn’t they?
And it’s hard to undo decisions that were legitimately made by the EC acting in good faith (even if they turn out to be bad decisions).
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@PeterC said:
That would be the ‘Fair Trade’ flat white-sipping set (with whom I am happy to be associated!)
Way ahead of you … I have Fair Trade chocolate on my FairTrade coffee. I wonder what the people in Fair Trading drink.
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@PeterC said:
Do you need the owner’s permission to reverse a special privilege? In the ACT (which might well be different) it requires a special resolution to rescind a special privilege over common property with no mention of needing agreement from the owner with the special privilege.In a word … yes. Presumably its to stop people having to undo changes they’ve been allowed to make when a new bunch of owners decised they’ve changed their minds. This is what the NSW Act says:
52 How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
(1) An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:(a) with the written consent of the owner or owners of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and
(b) in accordance with a special resolution.
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@Jef said:
In my opinion the owner(s) of a lot, and possibly their managing agents, should ensure that the lease clearly indicates the number of occupants entitled to live in their lot, including the number of car owners entitled to live there. Such lease conditions should alleviate the problems the EC has encountered with the tenant(s) of this lot. Breach of such lease conditions should immediately revoke the lease and put the tenant(s) who are in breach on the street.
Landlords are required by law to give tenants a copy of the by-laws. Breach of the by-laws is a breach of the terms of their lease and can lead to eviction. But you have to prove the breach and you have to give people a chance to do the right thing. The CTTT (quite rightly) isn’t going to put people on the street just because someone saw them parking in a visitor’s space and reported it to the EC.
Most leases refer to the number of people allowed to occupy the apartment. As to the number of cars, you could have one person with four cars, each of which might be legally parked in a car space leased from another owner.
You don’t need complicated by-laws that restrict people from doing what they want … just from doing what’s wrong. As far as rental agents go, I think ECs should be encouraged to blacklist agents (the same way agents blacklist tenants) for persistently renting units in the wrong building to the wrong people. You can’t ban them but you can warn your owners that there are certain agents that are likely to bring trouble to their doors.
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We had this debate just the other week, where someone was outraged that tenants were being approached directly by the EC. My view at the time was, and still is, that as a tenant I’d rather deal with complaints myself than be dobbed in to my landlord who might then kick me out.
In this case, I think you treat the tenants as adults and tell them that they are in breach and give them an opportunity to mend their ways (they won’t be the first residents – tenants or owners – to not know what the rules are).
But if they persist, you certainly should contact the owners and explain that their tenants are in breach of the by-laws, and therefore in breach of their lease and ask what they plan to do about it. If they say ‘nothing’ then, sure, send them a Notice To Comply too.
I think the big difference is that the tenants are in breach of the by-laws whereas lax landlords are in breach of the strata Act (Section 117, I think) by permitting their tenants to breach the by-laws.
It’s not as simple as dragging the landlords in on the same Notice To Comply – nor do I think it should be. You can’t hold people responsible for other people’s behaviour – all you can do make them accountable when there’s something they could have done but haven’t.
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@Juan Durection said:
So you don’t agree with my trailer-park theory?As I will argue in my upcoming book “Dirty Linen – the Social Significance of Washing Lines”, the way we view laundry drying has changed over the years. The lines suspended between apartment blocks in New York and Rome, in days gone by, have a romanticism that the beach towels drying over Gold Coast balconies don’t quite possess. Glasgow Tenement flats had ‘pulleys” that raised the dripping laundry above the kitchen where they would dry, protected from the inclement West of Scotland weather (but not from the chip fat fumes of the nightly fry-up).
Now, here in Australia, our affordable luxury ceilings are too low for any such contraption so it’s either environmentally destructive and expensive tumble dryers or visually challenging but ecologically right-on (and free) balcony drying. And far from visible washing being a sign of social disintegration, the balcony by-law breaches are just as likely to be a sign of environmentally aware and socially responsible members of the cappuccino-sipping set as they are to be ‘trailer trash’ who have upgraded to un-wheeled accommodation.
What I find more upsetting are the bamboo fences that are starting to appear on balconies (especially in the great and growing Gulag on the way to the airport) as residents realise there was a very good reason neighbouring buildings were airbrushed out of the artists impression of the block in which they bought off the plan.
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@Juan Durection said:
Of course the sight of drying washing visible to the street or from common property (or another apartment) either on a balcony or inside, looks downright trailer-trashy and any well-meaning, altruistic notion that it is alright because of the environmentally negative of clothes dryers is… well… it reminds me of the very funny South Park episode called Smug where all the people driving hybrid cars were portrayed as smug and bent over a lot to smell their own expelled wind with satisfied nods.
“Of course”? According to Cartman, perhaps. I’ll see your “smug” and raise it with “snob”.
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What do you mean by “reversed”? Any by-law can be changed by a 75 percent vote at a general meeting although in the case of a special resolution allowing an owner exclusive use of common property, it can only be done with their permission.
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@awayday said:
We need to raise a special levy and all have agreed the work is needed. However, one unit owner says they cannot afford to contribute to a special levy right now, and has asked that we postpone until they are in a ‘better position’.What can we do?
If the work is needed, it’s needed. You can try to help this owner in whatever way you can but when push comes to shove they have to pay. If they don’t they are liable not only to 10 percent interest but also the cost of debt recovery. It’s tough but it’s in their and everyone else’s interest foir them to find the money. If they simply can’t, you can raise a strata loan and pay it off when the debt is recovered.
Don’t forget you have a legal obligation to maintain and repair common property. Paying a special levy may not seem like a priority to this owner – your job may be to convince them that it is.
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@lil ol me said:I am frustrated that repairs that I wish to make to my apartment to make it livable are all being put on hold by the EC based on some miracle settlement that will pay for all the repairs.
I want to know where I stand on the following.
1) If I am out voted at the next strata meeting and the majority wish to take legal action, do I really have to contribute extra strata levies to pay for lawyers for what I consider to be a lost cause?
Legal action has to be approved by the owners at a General Meeting if it’s going to cost more than $12,500. The Executive Committee can’t agree to legal action costing more than that without approval from the Owners Corporation (although that approval may have been give at a previous general meeting).
However, if the majority of owners agree to additional levies for whatever reason, you have to pay. If you don’t you can no longer vote at general meetings and you’ll face a 10 percent penalty interest rate. The cost of recovering the debt will also fall to you so non-payment is really not an option.
2) Can the strata really prevent me from making essential repairs to my property so that someone can actually live in it?
In fact, the Owners Corp has an absolute duty to maintain and repair common property (see section 62, below), regardless of what other legal action may be gong on at the time. There is legal precedent to suggest that the pursuit of a defects claim is not considered to be taking action to maintain and repair common property, neither is it a legitimate excuse for not getting the work done (harsh as that may seem).
I know one of our sponsors, IBC, takes a completely different tack when it comes to defect claims and that is to get quotes for the necessary repairs and then present them to the developers and ask them which ones they want to go with (I hope I’m presenting this correctly – Chris M will correct me if I’m not).)
If it does go to court, the defect has pretty much already been established and it’s very hard for the developers to argue that there are no defects (as they will) or that the repairs are minor (as they do) when three builders have looked at the problem and put a price on a solution.
Whjile you are still a member of the EC, maybe you need to talk to Chris. Click on the ad at the top right if you do. I’m sure he’d be interested in talking to your executive committee to see if he can help. In any case, you are within your rights to demand that the Owners Corp fixes common property in your lot and allows you to repair your own property.
If they baulk at this, you can take them to the Supreme Court to demand compensation and an order for the work to be done. And now we’re back with lawyers … and that isn’t going to win you any popularity contests.
But offer solutions rather than problems and you could be the hero of the hour.
62What are the duties of an owners corporation to maintain and repair property?
(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
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I would write a letter to the EC members (possibly copied to other owners) pointing out that they are failing in their duty under Section 62 of the strata Act. There is legal precedent to show that this section is absolute – it has to be followed regardless of the financial or other circumstances of the strata scheme.
You will require a schedule of works to be sent to all owners within 14 days or you will take action at the CTTT to have a statutory manager appointed. A statutory manager will take over all the duties of the Executive Committee and Owners Corporation for at least a year and will initiate any work needed to be done on common property. If there insufficient funds to complete all the work, a special levy may be raised.
There is no legal need for the SM to consult with owners during this period of appointment. The Owners Corp, as represented by the Executive Committee, has failed in its statutory duties and has therefore lost the right to run the building.
The SM will choose the quotes and the companies to do the work. They may also hire other services – like cleaners etc – to maintain the common property properly. The SM ihas a statury obligation to fulfill the letter of the law – they may not be concerned by any “off the record” arrangements that may be in place.
EC members also should be aware that, as they have been informed of the need for repairs and maintenance several times, they may now be guilty of culpable negligence. That means their EC insurance may be invalid if there are additional expenses that would not have been incurred if they had done the right thing. If they have invalidated their insurance by willfully neglecting advice that work was required, they could be personally liable for the additional expenses.
Finally, tell them that you don’t wish to go down this road but you aren’t prepared to allow continued mismanagement of the building to result in the further deterioration of the value of your and other owners properties.
Then quote the Act (below), maybe refer to the specific works that need to be done, and light the blue touch paper and retire to a safe distance.
62 What are the duties of an owners corporation to maintain and repair property?
(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
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@kiwipaul said:
I’m actually gobsmacked by some of these bizarre rules in NSW.Seems to me that any alterations you want to do you keep quite about them (saving yourself having to have a bylaw added), once alteration complete and it develops a fault you lodge a request with the Strata to fix it if it’s common property.
Common sense seems to have done a runner in NSW Strata.
You’re not alone in being gobsmacked but it’s not a rule, just a quirk in the law, a loophole that can be closed – if you’re aware of it.
As for doing work illegally and then when it breaks down, demanding that the Owners Corp fix it – that’s not going to happen.
What’s much more likely is that you will be instructed to return common property to its previous state and if you don’t do it, the OC will and then add the bill to your levies (as they are entitled to do).
The problem arises when the work is done, either without the OC’s knowledge or on a nod and wink basis (favoured by the old school who think by-laws are for wusses) and then the property is sold to an unwitting buyer.
‘Buyer beware’ in these cases is superseded by “Owners Corp take care”
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@Dudley said:
As a starting point I would appreciate your opinion on what I must do to raise at the AGM various issues which I do not understand and/or am not convinced are necessary (unwarranted expense).
My preference would be to raise them at the AGM without prior notification – for reasons somewhat unique to our property.
Well there‘s a problem right away. You can make a decision on anything at an AGM that isn’t on the agenda. You can discuss what you like (at the chair’s discretion) but unless it’s on the agenda, any vote taken on the mater would be invalid.
However, can I suggest you take a look at the SCA’s excellent free online executive committee training course. I’m sure you will find it enlightening, informative and helpful. It will also make you better informed than 95 percent of people living in strata.
Click HERE to get going.
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@JimmyT said:But if the renovating owner sells and the new owner doesn’t become aware until later that common property has been altered, then the repair and maintenance of the altered common property falls back on the Owners Corp ….
@kiwipaul said:Not sure that is true. As generally it’s the new owners responsibility to make sure everything is in order before purchasing the property. That why they do searches before completion to make sure everything is kosher. Also how on earth is the OC supposed to know when alterations are done within the property if owner (who did the alteration) doesn’t admit to it.
It’s true all right. Have a look HERE. The legal point is based on the simple idea that sooner or later someone has to carry the can and if the new owner says they bought in good faith and there was no way they could have known there had been unregulated changes, and the previous owner is long gone, someone has to take responsibility and that’s the Owners Corp.
Our building recently passed a by-law that said if you changed any common property in your apartment, you and subsequent owners were responsible. I’m not sure how watertight that is because we even more recently passed two “enabling” by-laws that retrospectively gave permission for the installation of bathroom tiles in two different apartments, subject to the lot owners accepting responsibility for the upkeep of the affected common property.
On the question of the by-laws costing $2000 – that’s one figure from one building and we accept it’s a bit of a rort. Changing your light on your porch probably wouldn’t need a by-law. If there was an issue with it, your EC would tell you to remove the new light and replace the old one at your own expense. Also, they could give you permission to do that based on your acceptance of their conditions (ie, you repair the light at your own expense).
There is a lot of wriggle room in the actual management of strata – where we get into trouble is when we spend too much time poring over the law – or don’t read it at all.
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@Whale said:I think I know the answer to this question, but what opinions do readers have have about a Special By-Law preventing (ideally) or at least placing conditions on sub-tenancy arrangements in toto, that is irrespective of whether it’s Housing NSW or anyone else?
I think the answer is right here in the Act …
49 Restrictions on by-laws
(1) By-law cannot prevent dealing relating to lot
No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing relating to a lot.This is the same clause that short-term renters and over-crowders use to try get round efforts to restrict the way apartments are rented. You may find it’s one of the clauses heavily modified in the next round of legislation, give how sweeping its effects might be.
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